CJ& SVSJ: W.P. No.

7338 of 2020
19.06.2020

ORDER
By this order, we are firstly dealing with the issue of

framing charge by procuring presence of accused through Video

Conferencing (through electronic video linkage). There are two

specific situations with which we are dealing. The first situation

is where the accused is in judicial custody and the second

situation is when accused is on bail. The second issue is

whether the examination of the accused under Clause (b) of

sub-section (1) of Section 313 can be recorded by procuring the

presence of the accused by Video Conferencing. We are

examining these issues in the context of situation prevailing due

to pandemic of Covid-19.

2. Firstly, we deal with the issue of framing charge. Section

228 of the Code of Criminal Procedure 1973 (in short ‘Cr.P.C’)

deals with framing of charge in a trial before a Court of

Sessions. Section 228 read thus:

“228. Framing of Charge.- (1) If, after such

consideration and hearing as aforesaid, the Judge is
of opinion that there is ground for presuming that the
accused has committed an offence which-
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(a) is not exclusively triable by the Court of

Sessions, he may, frame a charge against
the accused and, by order, transfer the
case for trial to the Chief Judicial
magistrate or any other Judicial Magistrate
of the first class and direct the accused to
appear before the Chief Judicial Magistrate,
or, as the case may be, the Judicial
Magistrate of the first class, on such date
as he deems fit, and thereupon such
Magistrate shall try the offence in
accordance with the procedure for the trial
of warrant-cases instituted on a police
report;

(b) is exclusively triable by the Court, he shall

frame in writing a charge against the
accused.

(2) Where the Judge frames any charge under

clause (b) of sub-section (1), the charge shall be
read and explained to the accused and the accused
shall be asked whether he pleads guilty of the
offence charged or claims to be tried.”
(Underline added)

3. As regards warrant cases, the relevant provision is

Section 240Cr.P.C., which reads thus:

 3

“240. Framing of Charge. – (1) If, upon such

consideration, examination, if any, and hearing, the
Magistrate is of opinion that there is ground for
presuming that the accused has committed an
offence triable under this Chapter, which such
Magistrate is competent to try and which, in his
opinion, could be adequately punished by him, he
shall frame in writing a charge against the accused.

(2) The charge shall then be read and

explained to the accused, and he shall be asked
whether he pleads guilty of the offence charged or
claims to be tried.”
(Underline supplied)

4. In summons triable cases, it is not necessary to frame a

formal charge. However, Section 251 Cr.P.C is material which

reads thus:

“251. Substance of accusation to be stated. –

When in a summons-case the accused appears or is
brought before the Magistrate, the particulars of the
offence of which he is accused shall be stated to
him, and he shall be asked whether he pleads guilty
or has any defence to make, but it shall not be
necessary to frame a formal charge.”
 4

5. As far as the trial before the Court of Sessions and trial in

warrant triable cases is concerned, if Sections 229, 230, 241

and 242 of Cr.P.C. are read with the provisions of Section 228

and 240 of Cr.P.C, it is crystal clear that in the Sessions triable

cases and warrant triable cases, the charge framed by the

learned Judge has to be read over and explained to the accused

and the accused is required to be asked whether he pleads

guilty or claims to be tried. The accused may plead guilty or he

may claim to be tried. The accused may or may not plead

anything after the charge is read over and explained to him or

may refuse to plead. When the accused does not plead guilty,

in all other contingencies, both in Sessions triable cases and

warrant triable cases, a date for recording of evidence is

required to be fixed. In case of both the categories of trials, the

plea of the accused after charge is read over and explained is

required to be recorded. In a summons triable cases, though it

is not necessary to frame a charge, the particulars of the offence

alleged shall be stated to the accused and he shall be asked

whether he pleads guilty or whether he has a defence to the

same. In summons triable cases, there is a specific provision in

Section 252 mandating that in the event the accused pleads

 5

guilty, the Magistrate shall record the plea as for as practicable

in the words used by the accused.

6. Thus, it follows that in case of all three categories of trials,

plea of the accused is required to be recorded. In summons

triable case, the plea is to be recorded after explaining the

offence and in two other category of cases, after framing the

charge and after reading over and explaining the charge to the

accused, the plea has to be recorded. It means that for

recording plea, the presence of the accused before the Court is

necessary. Now, the question is whether such presence can be

procured through Video Conferencing. This issue need not

detain us in view of the law laid down by the Apex Court in the

case of State of Maharashtra v. Dr. Praful B. Desai1. The

Apex Court considered Section 273 of Cr.P.C which mandates

that all evidence taken in the Courts shall be taken in the

presence of the accused. The issue was whether the words ‘the

presence’ is used in the sense of physical presence. In

paragraphs 19 and 20 of the decision, the apex Court resolved

controversy. The Apex Court held thus:

1
(2003) 4 Supreme Court Cases 601
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“19. At this stage we must deal with a submission

made by Mr Sundaram. It was submitted that video-
conferencing could not be allowed as the rights of an
accused, under Article 21 of the Constitution of India,
cannot be subjected to a procedure involving “virtual
reality”. Such an argument displays ignorance of the
concept of virtual reality and also of video-
conferencing. Virtual reality is a state where one is
made to feel, hear or imagine what does not really
exist. In virtual reality, one can be made to feel cold
when one is sitting in a hot room, one can be made to
hear the sound of the ocean when one is sitting in the
mountains, one can be made to imagine that he is
taking part in a Grand Prix race whilst one is relaxing
on one's sofa etc. Video-conferencing has nothing to
do with virtual reality. Advances in science and
technology have now, so to say, shrunk the world.
They now enable one to see and hear events, taking
place far away, as they are actually taking place. To
take an example, today one does not need to go to
South Africa to watch World Cup matches. One can
watch the game, live as it is going on, on one's TV. If a
person is sitting in the stadium and watching the
match, the match is being played in his sight/presence
and he/she is in the presence of the players. When a
person is sitting in his drawing room and watching the
match on TV, it cannot be said that he is in the
presence of the players but at the same time, in a
 7

broad sense, it can be said that the match is being

played in his presence. Both, the person sitting in the
stadium and the person in the drawing room, are
watching what is actually happening as it is
happening. This is not virtual reality, it is actual reality.
One is actually seeing and hearing what is happening.
Video-conferencing is an advancement in science and
technology which permits one to see, hear and talk
with someone far away, with the same facility and
ease as if he is present before you i.e. in your
presence. In fact he/she is present before you on a
screen. Except for touching, one can see, hear and
observe as if the party is in the same room. In video-
conferencing both parties are in the presence of each
other. The submissions of the respondents' counsel
are akin to an argument that a person seeing through
binoculars or telescope is not actually seeing what is
happening. It is akin to submitting that a person seen
through binoculars or telescope is not in the
“presence” of the person observing. Thus it is clear
that so long as the accused and/or his pleader are
present when evidence is recorded by video-
conferencing that evidence is being recorded in the
“presence” of the accused and would thus fully meet
the requirements of Section 273 of the Criminal
Procedure Code. Recording of such evidence would
be as per “procedure established by law”.
 8

20. Recording of evidence by video-conferencing

also satisfies the object of providing, in Section 273,
that evidence be recorded in the presence of the
accused. The accused and his pleader can see the
witness as clearly as if the witness was actually sitting
before them. In fact the accused may be able to see
the witness better than he may have been able to if he
was sitting in the dock in a crowded courtroom. They
can observe his or her demeanour. In fact the facility
to playback would enable better observation of
demeanour. They can hear and rehear the deposition
of the witness. The accused would be able to instruct
his pleader immediately and thus cross-examination of
the witness is as effective, if not better. The facility of
playback would give an added advantage whilst cross-
examining the witness. The witness can be confronted
with documents or other material or statement in the
same manner as if he/she was in court. All these
objects would be fully met when evidence is recorded
by video-conferencing. Thus no prejudice, of
whatsoever nature, is caused to the accused. Of
course, as set out hereinafter, evidence by video-
conferencing has to be on some conditions.”
(Underline supplied)

7. The Video Conferencing Rules (in short ‘Video

Conferencing Rules’), framed by this Court, a copy of which is

annexed to the petition, lay down the procedure for recording of

 9

evidence by Video Conferencing. Rule 8 contemplates the

examination of persons including the witnesses through Video

Conferencing. Rule 11 indicates that in certain circumstances,

even for remand, an accused can be produced before the

learned Magistrate through Video Conferencing. Rule 11.2

specifically permits recording of statement under Section 164 of

Cr.P.C read with Rule 5 of Chapter 5 of Karnataka Criminal

Rules of Practice 1968 (in short ‘the Rules of Practice’) by Video

Conferencing. Rule 11.2 specifically permits recording of a

statement of the accused under Section 313 through Video

Conferencing. Thus, at the time of framing of charge and at the

time of recording of plea, the presence of the accused before

the Court can be procured through Video Conferencing. By

procuring the presence of the accused through Video

Conferencing in case of Sessions triable cases and in case of

warrant triable cases, the charge can be read over and

explained to the accused and his plea can be recorded. Rule 5

of the Video Conferencing Rules will apply for recording of the

evidence by Video Conferencing. If the accused is in Judicial

Custody, Video Conferencing facility can be provided at the

prison and in such case, the remote point coordinator within the
 10

meaning of Rule 5.3 will be the Jail Superintendent or the officer

in-charge of the prison. In case the accused is on bail, any fit or

proper person will have to be appointed as the coordinator to

ensure that proceedings are conducted in a fair, impartial and

independent manner.

8. Though there is no specific provision in Cr.P.C to that

effect, there is a practice followed by various Courts of taking

the signature of the accused on the plea. If by way of abundant

precaution, the learned Judges desire that the signature of the

accused is necessary on the plea, in case of accused in judicial

custody, a copy of the charge framed and plea recorded

thereon can be send by e-mail to the coordinator who will be an

officer of the concerned prison. He can be directed to down

load the same, take print and obtain the signature of the

accused in his presence and send it to the Court. In case of an

accused on bail, the coordinator can be directed to follow the

same procedure. While recording the plea, the Judicial Officer

will be well advised to record a statement of the accused that

the Judge was clearly audible and visible to him while the

charge was read over and explained to him and while his plea

was recorded.
 11

9. As far as the examination of the accused under Clause (b)

of sub-section (1) of Section 313 Cr.P.C is concerned, it is

necessary to make a reference to Section 313 which reads thus:

“313. Power to examine the accused - (1) In every

inquiry or trial, for the purpose of enabling the
accused personally to explain any circumstances
appearing in the evidence against him, the Court –
(a) may at any stage, without previously
warning the accused put such questions to
him as the Court considers necessary;
(b) shall, after the witnesses for the
prosecution have been examined and
before he is called on for his defence,
question him generally on the case:

Provided that in a summons-case, where the

Court has dispensed with the personal attendance of
the accused, it may also dispense with his
examination under clause (b).
(2) No oath shall be administered to the
accused when he is examined under sub-section (1).
(3) The accused shall not render himself liable
to punishment by refusing to answer such questions,
or by giving false answers to them.
(4) The answers given by the accused may be
taken into consideration in such inquiry or trial, and
put in evidence for or against him in any other inquiry
 12

into, or trial for, any other offence which such

answers may tend to show he has committed.
(5) The Court may take help of Prosecutor
and Defence Counsel in preparing relevant
questions which are to be put to the accused and the
Court may permit filing of written statement by the
accused as sufficient compliance of this section.”
(underlines supplied)

10. Sub-section (5) provides for filing of written statement of

the accused which will be treated as sufficient compliance of the

requirements under Section 313 of Cr.P.C.

11. On this aspect, it is necessary to refer to the decision of

the Apex Court in the case of Basavraj R. Patil and others v.

State of Karnataka and others2. It is a decision by a Bench of

three Hon’ble Judges. The majority decision was rendered by

Thomas, J., for himself and Variava, J. The question arose

before the Apex Court is recorded in the majority decision, which

reads thus:

“2. When a criminal Court completes

prosecution evidence (other than in summons cases)
is it indispensably mandatory that the accused
himself should be questioned? Cannot the Court

2
(2000) 8 SCC 740
 13

allow the advocate to answer such questions on

behalf of the accused at least in some exigent
conditions?”

12. The Apex Court considered the object of examination of

accused under Section 313 of Cr.P.C. In paragraph 19, it was

held that the provision is mainly intended to benefit the accused

and it also helps the Court in reaching the final conclusion. In

paragraph 21, the Apex Court held thus:

“21. But the situation to be considered now is

whether, with the revolutionary change in
technology of communication and transmission and
the marked improvement in facilities for legal aid in
the country, is it necessary that in all cases the
accused must answer by personally remaining
present in court. We clarify that this is the
requirement and would be the general rule.
However, if remaining present involves undue
hardship and large expense, could the court not
alleviate the difficulties. If the court holds the view
that the situation in which he made such a plea is
genuine, should the court say that he has no
escape but he must undergo all the tribulations and
hardships and answer such questions personally
presenting himself in court. If there are other
accused in the same case, and the court has
 14

already completed their questioning, should they

too wait for long without their case reaching finality,
or without registering further progress of their trial
until their co-accused is able to attend the court
personally and answer the court questions? Why
should a criminal court be rendered helpless in
such a situation?”
(underline supplied)

The issue is answered in paragraphs 24 to 27, which read thus:

“24. We think that a pragmatic and

humanistic approach is warranted in regard to
such special exigencies. The word “shall” in clause
(b) to Section 313(1) of the Code is to be
interpreted as obligatory on the court and it should
be complied with when it is for the benefit of the
accused. But if it works to his great prejudice and
disadvantage the court should, in appropriate
cases, e.g., if the accused satisfies the court that
he is unable to reach the venue of the court,
except by bearing huge expenditure or that he is
unable to travel the long journey due to physical
incapacity or some such other hardship, relieve
him of such hardship and at the same time adopt a
measure to comply with the requirements in
Section 313 of the Code in a substantial manner.
How could this be achieved?
 15

25. If the accused (who is already exempted from

personally appearing in the court) makes an
application to the court praying that he may be
allowed to answer the questions without making
his physical presence in court on account of
justifying exigency the court can pass appropriate
orders thereon, provided such application is
accompanied by an affidavit sworn to by the
accused himself containing the following matters:

(a) A narration of facts to satisfy the court of

his real difficulties to be physically
present in court for giving such answers.
(b) An assurance that no prejudice would be
caused to him, in any manner, by
dispensing with his personal presence
during such questioning.
(c) An undertaking that he would not raise
any grievance on that score at any stage
of the case.

26. If the court is satisfied of the genuineness of

the statements made by the accused in the said
application and affidavit it is open to the court to
supply the questionnaire to his advocate
(containing the questions which the court might
put to him under Section 313 of the Code) and fix
the time within which the same has to be returned
duly answered by the accused together with a
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properly authenticated affidavit that those answers

were given by the accused himself. He should affix
his signature on all the sheets of the answered
questionnaire. However, if he does not wish to
give any answer to any of the questions he is free
to indicate that fact at the appropriate place in the
questionnaire (as a matter of precaution the court
may keep photocopy or carbon copy of the
questionnaire before it is supplied to the accused
for an answer). If the accused fails to return the
questionnaire duly answered as aforesaid within
the time or extended time granted by the court, he
shall forfeit his right to seek personal exemption
from court during such questioning.

27. In our opinion, if the above course is adopted

in exceptional exigency it would not violate the
legislative intent envisaged in Section 313 of the
Code”.

13. In the present situation created by the pandemic, the Apex

Court in Suo Motu Writ Petition (C) No. 1 of 2020 (In Re:

Contagion of Covid 19 Virus in Prisons)3, has issued a

direction which reads thus:

“xxx Taking into consideration the possibility of

outside transmission, we direct that the physical

3
2020 SCC Online SC 344
 17

presence of all the undertrial prisoners before

the Courts must be stopped forthwith and
recourse to video conferencing must be taken
for all purposes. Also, the transfer of prisoners
from one prison to another for routine reasons must
not be resorted except for decongestion to ensure
social distancing and medical assistance to an ill
prisoner. Also, there should not be any delay in
shifting sick person to a Nodal Medical Institution in
case of any possibility of infection is seen”.
(emphasis added)

The aforesaid direction is issued in exercise of powers under

Article 142 of the Constitution of India, which is binding on all the

Courts. Therefore, no undertrial prisoner can be produced before

the Court for recording his plea and for recording his

examination under clause (b) of sub-section (1) of section 313 of

Cr.P.C. during the period of pandemic.

14. Another suo motu Writ Petition (Civil) No. 5 of 2020 was

initiated by the Apex Court (In Re: Guidelines for Courts

functioning through Video Conferencing during COVID 19

pandemic). There is an order dated 6th April, 2020 passed in

the said case which is relevant. Paragraph-5 of the said order

reads thus:
 18

“5. Faced with the unprecedented and

extraordinary outbreak of a pandemic, it is
necessary that Courts at all levels respond to the
call of social distancing and ensure that court
premises do not contribute to the spread of
virus. This is not a matter of discretion but of
duty. Indeed, Courts throughout the country
particularly at the level of the Supreme Court and the
High Courts have employed video conferencing for
dispensation of Justice and as guardians of the
Constitution and as protectors of individual liberty
governed by the rule of law. Taking cognizance of
the measures adopted by this Court and by the
High Courts and District Courts, it is necessary
for this Court to issue directions by taking
recourse to the jurisdiction conferred by Article
142 of the Constitution.”
(emphasis added)

Clauses (i) and (ii) of paragraph 6, which are the part of the

directions, specifically issued under Article 142 are material

which read thus:

“6(i) All measures that have been and

shall be taken by this Court and by the High
Courts, to reduce the need for the physical
presence of all stakeholders within court
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premises and to secure the functioning of

courts in consonance with social distancing
guidelines and best public health practices
shall be deemed to be lawful;

(ii) The Supreme Court of India and all

High Courts are authorized to adopt
measures required to ensure the robust
functioning of the judicial system through the
use of video conferencing technologies; and”

(emphasis added)

15. Under Rule 11.2 of the Video Conferencing Rules, it is

specifically provided that in exceptional circumstances, for the

reasons to be recorded in writing, the Courts can record the

statement of the accused under Section 313 of Cr.P.C through

Video Conferencing.

16. The Court in its discretion can take recourse to sub-

section (5) of Section 313 of Cr.P.C and permit the accused to

file his written statement with reference to the questions

formulated. The questions can be sent to Jail and the accused

can be directed to file his written statement duly signed by him

before the Jailor or the Superintendent of Jail. The Court can

 20

always direct the Jail authorities to allow the Advocate of the

accused to meet the accused for the purposes of preparation of

written statement. If accused is on bail, he can be called upon

to answer the questions in writing by handing over the same to

his Advocate by directing that written statement of the accused

shall be countersigned by him by identifying the signature of his

client. The other option is of recording the statement by

procuring presence of the accused by Video Conferencing

Hearing. The concerned Jail superintendent or the officer-in-

charge of the prison will be the coordinator at the remote point of

the prison. Before recording the statement and in the midst of

recording the statement, the learned Judge can put questions to

the accused to ascertain whether he is clearly audible and

whether the accused understood the questions posed to him.

The learned Judge may record this in the statement to that

effect. If the signature of the accused is required, a copy of the

written statement recorded can be sent by e-mail to the Jail

authorities with an instruction to the Jail authorities to obtain

signature of the accused on the statement and then forward the

statement to the Court. In case of accused on bail, similar

procedure can be followed. The only difference being a fit and

 21

proper person appointed by the Court will be the coordinator at

the remote point where the accused is sitting.

17. We must note here that we are deciding the issue only in

the context of an exceptional situation created in which due to

spread of COVID-19, the Courts are not able to function

normally. As observed by the Apex Court in suo motu Writ

Petition (Civil) No. 5 of 2020, it is the duty of every Court to

ensure that the Court premises do not contribute to the spread

of virus. Moreover, in suo motu Writ Petition (Civil) No. 1 of

2020, the Apex Court has categorically directed that in the

present situation, the presence of all the undertrial prisoners

before the Courts must be stopped forthwith and recourse to

Video Conferencing Hearing must be taken for all purposes.

This direction issued by the Apex Court will have to be read with

the directions issued on 6th April, 2020 in suo motu Writ Petition

(Civil) No. 5 of 2020. The course adopted by the Courts while

recording the plea of the accused and recording the statement

of the accused under Section 313 of Cr.P.C through video

conferencing hearing will be a step taken to reduce the physical

presence of the stakeholders in the Courts precincts to meet the

exceptional situation and to secure the functioning of the Courts

 22

by following the best possible health practice. Therefore, such

a course adopted by the Courts shall be deemed to be lawful, in

view of the directions contained in clause (i) of paragraph-6 of

the aforesaid order dated 6th April, 2020 issued in suo motu Writ

Petition (Civil) No.5 of 2020. The directions of the Apex Court

in paragraph 6 are specifically under Article 142 of the

Constitution of India, which will apply during the epidemic of

COVID-19.

Accordingly, the questions which are set out earlier stand

answered.

Sd/-
CHIEF JUSTICE

Sd/-
JUDGE

Mr/Vr